In a case brought by Osama Bin Laden's former driver, Hamdan v. Rumsfeld, a federal judge has upheld the new law that establishes military commissions to try enemy combatants:
WASHINGTON - A federal judge upheld the Bush administration's new terrorism law Wednesday, agreeing that Guantanamo Bay detainees do not have the right to challenge their imprisonment in U.S. courts.
The ruling by U.S. District Judge James Robertson is the first to address the new Military Commissions Act and is a legal victory for the Bush administration at a time when it has been fending off criticism of the law from Democrats and libertarians.Robertson rejected a legal challenge by Salim Ahmed Hamdan, a former driver for Osama bin Laden whose case prompted the Supreme Court to strike down the Bush administration's policy on detainees last year.
Following Hamdan's victory, Bush asked for and got a new law that established military commissions to try enemy combatants and stripped them of the right to seek their freedom in U.S. courts.
Hamdan's case was sent back before Robertson, a nominee of President Clinton who was a prominent civil rights advocate in private practice.
Though Robertson originally sided with Hamdan, he said that he no longer had jurisdiction to hear Hamdan's case because Congress clearly intended to keep such disputes out of federal courts. He said foreigners being held in overseas military prisons do not have the right to challenge their detention, a right people inside the country normally enjoy.
In some ways, this ruling is narrower than it looks. As a substantive matter, Congress has not denied the detainees the opportunity for judicial review of their detention; in the new Military Commissions Act it has simply specified the place where that review will occur. As Judge Robertson explained in the memorandum of his decision:
Hamdan claims that, unlike the Eisentrager petitioners, he has never been afforded access to a proper tribunal. That observation is obviously true, thus far, but Hamdan is to face a military commission newly designed, because of his efforts, by a Congress that finally stepped up to its responsibility, acting according to guidelines laid down by the Supreme Court. It is difficult to see how continued habeas jurisdiction [in the federal courts] could make further improvements in his tribunal.
Under the new law, the Military Commissions Act of 2006, detainees may challenge their detention before military tribunals, then contest the tribunal's ruling before a Washington appeals court. "That is more process than the United States has ever provided to enemy combatants in our past conflicts," according to Justice Department spokeswoman Kathleen Blomquist.
Here are the memorandum of Judge Robertson's decision and the one-sentence order dismissing Hamdan's case as a result.
The memorandum contains one footnote that may foreshadow things to come:
The MCA may not have been Congress’s last word on the statutory habeas rights of detainees such as Hamdan. On December 5, 2006, Senators Specter and Leahy introduced the Habeas Corpus Restoration Act of 2006, S. 4081, 109th Cong. (2006), which would grant statutory habeas rights to those whose rights were repealed by the MCA.
Well, yes, if Congress wants to require that federal district courts hear habeas petitions from enemy combatants, it certainly has the authority to so. I think Congress has higher priorities to attend to, but maybe that's just me.
___________________________
Update: The Washington Post reports that Sen. Patrick J. Leahy (D-Vt.), the incoming chairman of the Senate Judiciary Committee, said in a speech yesterday before Robertson's decision that the MCA "needlessly undercut our freedoms and values" and that his committee will consider legislation to modify it.
I would still encourage caution that takes account of wartime conditions. The war against the West by Islamic terrorists could become much worse before it gets better. We could end up with many more detained battlefield combatants. We do not need procedures that are cumbersome, time-consuming and expensive when multiplied by numerous detainees.
Update 2: More thoughts at Captain's Quarters and Stop the ACLU
Comments